La. Admin. Code tit. 41 § II-503

Current through Register Vol. 50, No. 9, September 20, 2024

Section II-503 - Referral of Offenses to Civilian Authorities

A. Evaluation of the Offense. Upon receipt of information that a service member of the command is suspected of committing an offense, the immediate Commander must make or cause to be made a preliminary inquiry into the suspected offense(s). [R.C.M. 303.] Upon determining that an offense has been committed, one of the issues that the Commander must decide is whether the conduct constituting the offense is characterized as a "felony," a "misdemeanor," a "dual" offense, a "purely civilian offense", or a "purely military offense." These terms are defined below and/or in the GLOSSARY to this Regulation. Commanders should consult with the servicing Staff Judge Advocate if in doubt on this evaluation.

B. "Dual" Offenses.

1. General. This would involve conduct that violates both civilian and military laws. Examples would include assault, battery, theft, drunk driving, riot, damage to property, disturbing the peace, and larceny.

2. Felonies. If the "dual" offense is a felony under the laws of Louisiana, federal law, or laws of another state where the incident occurred, [See GLOSSARY for definition] the commander must, at the earliest opportunity, consult with the Office of the Staff Judge Advocate regarding the advisability of referral to the proper civilian authorities in the Parish (or County) where the offense occurred. Many of the offenses defined as felonies under Louisiana law that are prohibited under the UCMJ are omitted from the LCMJ (e.g. Article 118 under the UCMJ defines and prohibits murder; this is omitted in the LCMJ, though homicide is defined and prohibited under general Louisiana laws applicable to all persons within the State. [See R.S. 14:29 et seq.] In the absence of extraordinary circumstances, each such case should be promptly referred to the appropriate civilian agency. When civilian felony charges have been filed against a service member, he shall be surrendered to civilian authorities.

3. Misdemeanors. If an offense against both civilian and military law is determined to involve a misdemeanor, [See GLOSSARY for definition] the commander should exercise discretion over his option of referring the matter to appropriate civil authorities or retaining the matter for disposition pursuant to courts-martial, non-judicial punishment, or non-punitive disciplinary sanctions. If circumstances permit, SJA advice should be sought.

C. Purely "Civilian" Offenses. Criminal conduct over which the LANG has no jurisdiction falls into this category. An example may be a crime committed in a non-duty status, not on a military facility, and when the victim has no service connection. Neither courts-martial nor commanders exercising non-judicial punishment shall have jurisdiction over purely civilian offenses, however a civilian conviction may afford basis for administrative action.

D. Purely "Military" Offenses. This is conduct that has no counterpart in the civilian law. Examples of purely military offenses are absence without leave (AWOL), missing movement, and disrespect to a superior commissioned officer. The commander's evaluation over how to deal with such offenses is not restricted by considerations of referral to civilian prospective agencies.

E. Policy. When the offense is punishable under the LCMJ and the State Criminal Code, the matter should ordinarily be referred to civilian authorities for disposition unless the interests of the Louisiana National Guard are better served by utilization of military administrative, non-judicial, or courts-martial procedures. Trial and punishment by civil authorities does not preclude trial and additional punishment by court-martial for any purely military offense related to a service member's commission of a referred offense, however caution and Judge Advocate advice should be obtained in such circumstances. A commander may re-evaluate any decision on referral should the appropriate civil authorities decline prosecution or fail to demonstrate an intention to timely initiate appropriate actions toward prosecution and/or punishment. [See LCMJ Article 14.]

F. Report to Superior Commander. If a case is referred to appropriate civilian authorities, the commander shall make an immediate report through operational channels to TAG. When the determination is made to precede within the LANG Military Justice system, the commander should complete the investigation (Chapter 3) in a timely manner to determine if there is probable cause that the accused committed the offense.

La. Admin. Code tit. 41, § II-503

Promulgated in accordance with the Office of the Governor, State Military Department, LR 35:2378 (November 2009).

AUTHORITY NOTE: Promulgated in accordance with R.S. 29:11(F).